The U.S. Department of Education on Wednesday issued extensive new rules governing how colleges must address complaints of sexual misconduct that pare back when they must intervene and cement protections for accused students and staff.
The regulations were met with stiff blowback from lawmakers, many institutions of higher education, as well as advocates of sexual assault survivors, who argue U.S. Secretary of Education Betsy DeVos is undoing key safeguards for victims that were bolstered under former President Barack Obama.
Meanwhile, the rules have been cheered by activists who claim the previous administration's guidance on Title IX, the federal sex discrimination law, was unfairly slanted against the accused and deprived them of constitutional due process.
They take effect Aug. 14 despite pleas from legislators as well as higher ed and survivor groups to DeVos to delay the regulations in light of the coronavirus pandemic. Leaders from across the sector balked at adapting to such a complex federal measure in an astoundingly short timeline and amid a public health crisis.
Ted Mitchell, president of the American Council on Education, said in a statement Wednesday that implementing the regulations by August is an "incomprehensible mandate … as cruel as it is counter-productive," noting it had taken the department nearly three years to develop them. DeVos withdrew the Obama-era guidance in 2017 and released her proposal the following year. It received more than 120,000 public comments, which were overwhelmingly critical.
Legal and survivor activist groups have vowed to challenge the rules in court. Know Your IX, among the most vocal of such organizations, confirmed to Education Dive that it would announce a lawsuit in the coming days. The National Women's Law Center pledged to prevent DeVos from "requiring schools to be complicit in harassment, turning Title IX from a law that protects all students into a law that protects abusers and harassers." The American Civil Liberties Union also indicated Wednesday it would sue.
In general, the rules introduce new protections for accused students, setting up judicial-style proceedings for college tribunals that decide sexual violence cases.
No longer may institutions use what's known as a "single-investigator" system for handling complaints. In that model, which was relatively popular, one person reviews the facts of a case and then offers a recommendation as to whether the accused is responsible.
Now, colleges must decide cases through a hearing, which may be done virtually. The parties must have a chance to question each other, but only through a lawyer or adviser of their choosing. Mitchell feared this would "tip the scales in favor of those who can afford to pay for high-priced legal pit bulls."
The parties may not engage directly, and a hearing officer will determine whether the questions are relevant. The Obama guidelines and survivor advocates have long discouraged direct confrontations, saying they could be traumatic for victims and deter them from reporting.
Cases between students can be resolved through informal means, such as mediation between an alleged survivor and the accused, but only if a complaint has been filed with an institution. And colleges can only investigate formal reports of sexual violence made to an institution official who has the authority to act on them, according to the new rules.
Colleges can also select the evidentiary bar for what constitutes a violation of their sexual misconduct policies. One is the "preponderance of the evidence" standard, which is used in civil cases and is oft-defined as a more-than-50% chance the accused is responsible. The other is "clear and convincing," a higher-reaching standard. The percentage is determined during the hearing process.
"It's a very primitive and poorly designed concept, but it's an attempt to create a federal college court," said Peter Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University, in Florida.
The rules reinforce that colleges must review complaints of domestic and dating violence, as well as stalking, as part of their Title IX obligations to address sexual harassment. They use the U.S. Supreme Court's definition of harassment in Title IX cases, which is that it must be "severe, pervasive and objectively offensive" enough to interfere with a student's education. That's a narrower label than the Obama administration's, which was "unwelcome conduct of a sexual nature."
Though DeVos touted in a phone call with reporters Wednesday that the rules are supportive of survivors, they also limit the scope of cases colleges would need to address. Legal experts have said Title IX is not geographically bound but rather is triggered by a hostile environment associated with the campus. But the rules direct colleges to only investigate episodes that occur on their grounds, in off-campus facilities they own, or other buildings controlled by a student organization that is "officially recognized" by the institution, such as fraternity or sorority houses.
This means officials would no longer need to look into incidents that occurred in some off-campus housing. They would also need to dismiss reports stemming from study abroad trips, even with clear evidence proving sexual misconduct occurred.
A lower bar?
Colleges can choose to route complaints that may no longer fall under Title IX through other campus conduct procedures. However, this can cause confusion, Lake said.
For instance, if a male student threw a bottle of alcohol at a female student during an altercation, and he was expelled from his university, an attorney could potentially sue that institution, alleging it should have been treated as a Title IX complaint and that the man was deprived of a hearing, Lake said.
Other key provisions include that the accused and the accuser would each have access to all evidence in the case, and that both sides could appeal its outcome. Colleges, then, can only be held liable under Title IX if they were "deliberately indifferent" in providing support to students or investigating sexual violence, according to the regulations.
That means a college essentially ignored a case, said Laura Dunn, a victims' rights attorney and founding partner at L.L. Dunn Law Firm. "The department is no longer leading the way on improving schools, they’re sitting back and waiting for something bad to happen," Dunn said.
Although the regulations carry the force of law, they could be overturned through the Congressional Review Act, which gives Congress the ability to reject executive actions within 60 days of the rule being submitted to its chambers.
The possibility that the administration could change after the election very likely played into the department's timing to release the rule, said Jake Sapp, deputy Title IX coordinator and compliance officer at Austin College, in Texas.